RE WING FAI CONSTRUCTION CO LTD

RE WING FAI CONSTRUCTION CO LTD

The Court of Appeal held that a liquidator is obliged to obtain the court's leave before disclosing private examination transcripts; because the court had been misled into believing the Barma Order covered the transcripts, the court varied its earlier costs order, remitted the committal hearing to Kwan J for resumption, ordered indemnity taxation for the December 2006 and October 2007 hearings, required the liquidator to pay interest on the repaid sum at 1% over HSBC best lending rate to 28 November 2007 and judgment rate thereafter, and declined to relieve the liquidator of liability for the Official Receiver's costs.

Citation
RE WING FAI CONSTRUCTION CO LTD
Parties
Applicant (director): Kelly Cheng Kit Yin; Applicant (director): Robert Yip Kwong; Respondent (liquidator): David John Kennedy; Interested Party / Official Receiver: Official Receiver
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
13 May 2008
Case Number
CACV244/2004
Procedural Posture
Civil Appeal Concerning Committal for Contempt Under the Companies Ordinance / Court of Appeal Judgment on Costs, Variation of Orders and Remittal to Trial Judge (kwan J)
Outcome
Court varied its earlier order, allowed variation to permit appeal from Kwan J's no-case finding to be resumed, remitted the committal hearing to Kwan J, varied costs orders in favour of the Directors for specified hearings and awarded interest on repaid sums.
Legal Topics
Disclosure of Private Examination Transcripts, Requirement for Court Leave, Committal for Contempt, Costs on Indemnity Basis, Variation of Costs Orders, Interest on Refunded Costs
Source Language
EN
Company Law Insolvency / Liquidation Civil Procedure Contempt of Court Costs Law Disclosure of Private Examination Transcripts Requirement for Court Leave Committal for Contempt +3 more

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Parties

Kelly Cheng Kit Yin

Applicant (director)

Robert Yip Kwong

Applicant (director)

David John Kennedy

Respondent (liquidator)

Official Receiver

Interested Party / Official Receiver

Procedural Posture

Civil Appeal Concerning Committal for Contempt Under the Companies Ordinance / Court of Appeal Judgment on Costs, Variation of Orders and Remittal to Trial Judge (kwan J)

Legal Issues

  1. 1 Whether a liquidator is required to obtain the court's leave before disclosing transcripts of private examinations under s.221 Companies Ordinance
  2. 2 Whether the liquidator had a case to answer for contempt for disclosure to the Commercial Crime Bureau
  3. 3 Whether costs of hearings occasioned by a false impression should be taxed on an indemnity basis

Ratio Decidendi

The Court of Appeal held that a liquidator is obliged to obtain the court's leave before disclosing private examination transcripts; because the court had been misled into believing the Barma Order covered the transcripts, the court varied its earlier costs order, remitted the committal hearing to Kwan J for resumption, ordered indemnity taxation for the December 2006 and October 2007 hearings, required the liquidator to pay interest on the repaid sum at 1% over HSBC best lending rate to 28 November 2007 and judgment rate thereafter, and declined to relieve the liquidator of liability for the Official Receiver's costs.

Court Disposition

Court varied its earlier order, allowed variation to permit appeal from Kwan J's no-case finding to be resumed, remitted the committal hearing to Kwan J, varied costs orders in favour of the Directors for specified hearings and awarded interest on repaid sums.

Orders

  • Remit the committal motion to Kwan J for resumption of the hearing
  • Set aside the judge's order that there was no case to answer and allow the Directors' appeal to proceed